I originally reported that the ban seemed to broad enough to include a prohibition on coffee beers – but it appears that is not the LCB’s intention. Breathe easy, beer lovers.

This law is being implemented under the State’s emergency powers, which provide for expedited regulatory powers in times of need. The law is temporary and will expire in March 2011. Thus, the LCB will be prompted to begin the regular law-making procedure to put together a final, more clear, regulation.

Here is the current language that is being put in place:

WAC 314-20-022Alcohol energy drinks. No product that combines beer, strong beer, or malt liquor with caffeine, guarana, taurine, or other similar substances which are commonly referred to as “alcohol energy drinks” may be imported into the state, produced, manufactured, distributed, sold or offered for sale by a licensed retailer in the state of Washington after November 17, 2010.

Many will say that the language is a bit broad, referring to products that “combine beer….with caffeine…which are commonly referred to as ‘alcohol energy drinks’.” First of all many products, including coffee, contain caffeine. Secondly, “alcohol energy drinks’ is an undefined term that could bear a myriad of meanings.

Its difficult to enact a regulation that specifically applies to a particular product. Remember, the LCB doesn’t simply want Four Loko to stop referring to itself as an “energy drink” in order to avoid the law. So, the LCB will have to use discretion in how this law is enforced until a more clear final regulation is put in place.

The LCB will rely on the purpose of this law in determining its enforcement. The purpose was to prevent that production and sale of “energy drinks” that are pre-mixed with alcohol. In fact, the LCB’s fact sheet specifically states that the ban does not implicate the mixing of liquor and energy drinks (i.e. Red Bull & Vodka), stating that “the ban applies only to pre-mixed, malt-based products.”

Coffee beers are pre-mixed beverages containing added caffeine. So, they fall along the lines of this regulation. Alas, the LCB does not intend to go after them, as they are not commonly referred to as “alcohol energy drinks.” It requires a bit of interpretation, but it will work for most in the beer industry.

The LCB informed me that coffee beers will not be implicated because brewers add coffee, not caffeine, and for the sole purpose of flavor. The difference is that Four Loko, and beverages like it, add caffeine, and for the sole purpose of “energy.”

The combination of recent alcohol poisoning and the difficulty of regulating a small sample of a particular type of product (“energy” drinks v. caffeine-added drinks) might require the LCB to enact a more sweeping regulation. Thus, it may behoove the Washington Brewers Guild and other brewing groups to get involved in the new rule-making procedure.

***UPDATE: It appears that coffee beers will be safe. The LCB says that the motivation is to go after products with added caffeine and marketed as energy drinks. This does not include products that add coffee, or other things that have caffeine, for flavor.

This is a big punch to many brewers in the State of Washington – and others who sell who beer here. There is a widening market for the sale of coffee-infused beer. Many brewers, such as Ellensburg’s Iron Horse Brewing, sell a coffee-based beer as part of their regular lineup.

I had a brief conversation with the Liquor Control Board, who seemed to infer that as long as beer and caffeine are combined in the same bottle/container – it cannot be sold or produced here in Washington.

Attached below is the initial press release that is going out in the next few hours. Give it a thorough read.

If you read the code provision that will be implemented, it does call question as to whether or not the ban will include the beers that are currently on the market. The code does mention that it bans beer that contains caffeine. But the code refers to those which “are commonly referred to as “alcohol energy drinks.” The structure of the provision might refer to the ingredients (meaning that it seeks to ban beverages with specific ingredients) as opposed to the beverage itself (meaning that it seeks to ban beverages with a common title). If it means the latter, coffee beers might be safe.

But alas, the provision is vague enough to spell an end to coffee stouts and other caffeinated beers out there on the market. We will certainly be following enforcement, closely.

Notice of Emergency Rule Banning Alcohol Energy Drinks in the State of Washington

On November 10, 2010, the Washington State Liquor Control Board adopted an emergency rule prohibiting the sale, importation, and distribution of alcohol energy drinks in the State of Washington after November 17, 2010.

The emergency rule expires automatically after 120 days (March 10, 20110). The board has also filed a pre-proposal statement of inquiry (CR 101) with the Code Reviser’s Office to begin permanent rulemaking.

If you have any questions, please contact Karen McCall, Rules Coordinator, at (360) 664-1631 or e-mail at rules@liq.wa.gov.

_______________________________

What are the agency’s reasons for adopting this emergency rule?

The mission of the WashingtonState Liquor Control Board (WSLCB) includes ensuring the responsible sale, and preventing the misuse of, alcohol. As part of this mission, the Board endeavors to ensure that products which pose a threat to public safety are handled appropriately. The board is particularly concerned about alcohol energy drinks, which are marketed in a way that implies the consumption of these beverages has a stimulating or energizing effect. Alcohol energy drinks have become increasingly popular, especially among underage drinkers. These beverages promote a situation where people may become inebriated, but cannot judge their own condition, which is contrary to human health and public safety. This is contrary to the mission of the WSLCB.

WAC Changes

NEW SECTION

WAC 314-20-022Alcohol energy drinks. No product that combines beer, strong beer, or malt liquor with caffeine, guarana, taurine, or other similar substances which are commonly referred to as “alcohol energy drinks” may be imported into the state, produced, manufactured, distributed, sold or offered for sale by a licensed retailer in the state of Washington after November 17, 2010.